Rapport définitif - Rapport No. 328, Juin 2002

1. 570. In a communication dated 1 August 2001, the Employers’ Confederation of Romania (CPR) submitted a complaint of violations of their collective bargaining rights against the Government of Romania.
2. 571. The Government sent its observations in communications dated 7 November and 28 December 2001 and 7 February 2002.
3. 572. Romania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 573. In its communication dated 1 August 2001, the complainant alleges that the Collective Agreement Act No. 143 of 1997 infringes its right to voluntary negotiations as guaranteed by Article 4 of Convention No. 98 and freedom of association principles. Section 1 of Act No. 143 provides that: collective negotiations are obligatory at the enterprise level, with the exception of those with less than 21 employees; collective negotiations must occur every year; and that the scope of the negotiations must include, at least, wages, working time, work programmes and working conditions. The duration of negotiations cannot last more than 60 days. Violations of these provisions results in a fine of between 3 million and 6 million lei. The complainant asserts that the new Minister of Labour has declared that he will enforce this regulation.

B. The Government’s reply

1. 574. In its communications dated 7 November and 28 December 2001, the Government first states that Article 4 of Convention No. 98 calls for measures appropriate to national conditions to be taken to encourage and promote the full development and utilization of machinery on a large scale for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to regulation of terms and conditions of employment. The Government confirms that Act No. 143, amending the Collective Agreement Act No. 130 of 1996, provides for the obligation to begin collective bargaining each year in workplaces with more than 21 employees. The negotiations must address, at least, wages, working time, work programmes and working conditions, while the duration of these negotiations must not exceed 60 days. The deadline for concluding negotiations was set with the aim of avoiding vacillation and delays. In the Government’s opinion, the Collective Agreements Act, as amended, in no way constitutes a violation of Convention No. 98 and, to the contrary, is a concrete legal framework for regulating collective bargaining with the aim of eliminating any risk of abuse either on the part of the workers’ organizations, or by the employer or employers’ organizations.
2. 575. The Government adds that the legislation does not provide for any obligation to conclude a collective agreement. If at the end of the 60-day period the parties have not arrived at an agreement, the labour relations will be set in the individual labour contracts established between the employee and the employer. The parties can then take up negotiations again 12 months after the date of the previous unsuccessful negotiation.
3. 576. In its communication dated 7 February 2002, the Government adds that the period for negotiations is dependent upon whether or not a collective agreement has been previously concluded. Where there is no collective agreement, the negotiations must take place 12 months after the previous negotiation. Where a collective agreement has been concluded, the negotiations must take place at least 30 days before the expiration of the collective agreement. Under section 23 of the Act, the duration of collective agreements must be at least one year and can be extended in the same conditions in which they were concluded or different conditions.
4. 577. The Government asserts that, in promoting collective bargaining, the Government has aimed at ensuring equitable labour relations for the social protection of employees, as well as the prevention or limitation of labour disputes and strike action. The Government adds that the social partners have not raised any difficulties in the carrying out of collective bargaining in practice.

C. The Committee’s conclusions

1. 578. The Committee notes that the allegations in this case concern infringements of free collective bargaining through legislation obliging employers and workers’ organizations to enter into negotiations in all enterprises with over 21 employees, under penalty of a fine.
2. 579. As regards the principle of free and voluntary negotiation, the Committee has considered that nothing in Article 4 of Convention No. 98 places a duty on the government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining. [See Digest of decisions and principles of the Freedom of Association Committee, 1994, para. 846.] The previous cases in which the Committee has set forth this principle have concerned complaints submitted by trade union organizations in respect of employer refusal to negotiate with a given organization and the absence of any compulsion by the government on the employer to do so. The focus of these cases was not whether the government had the right to enforce employers or employers’ organizations and workers’ organizations to enter into negotiations, but rather whether they had a duty so to do under internationally established standards and principles. The complaint in the present case is different in nature and the Committee is called upon to determine whether the term voluntary negotiation in Article 4 of Convention No. 98 means that a legal obligation to enter into negotiations for a specified period of time would be contrary to freedom of association standards and principles.
3. 580. In this respect, the Committee has reinforced the importance it attaches to collective bargaining in elaborating upon the principle of bargaining in good faith. It has recalled the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest, op. cit., para. 814]. A balance between the voluntary nature of collective bargaining and the importance of good faith negotiations was set forth by the Committee when it stated "while the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement" [see Digest, op. cit., para. 817].
4. 581. The Committee considers it important to emphasize that the legislation in question in this case does not oblige the conclusion of a collective agreement and that, in the event negotiations fail, conditions of employment will be regulated by the terms of individual contracts. Indeed, several other industrial relations systems around the world compel in varying circumstances the entering into of negotiations with, as the Government of Romania has indicated in the present case, the aim of promoting healthy and harmonious labour relations by providing a period for negotiations between the social partners in a period absent of industrial unrest. Neither these systems, nor the legislation in Romania, have been commented upon by the Committee of Experts on the Application of Conventions and Recommendations as giving rise to violations of Convention No. 98. The Committee considers that Article 4 of Convention No. 98 in no way places a duty on the Government to enforce collective bargaining, nor would it be contrary to this provision to oblige social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to enter into negotiations on terms and conditions of employment. The Committee recalls, however, that the public authorities should refrain from any undue interference in the negotiation process.